Date: 20110126
Docket: IMM-3694-10
Citation: 2011 FC 90
Toronto, Ontario, January 26,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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FERONA ELAINE MINGS-EDWARDS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Ferona Elaine
Mings-Edwards based her application for permanent residence from within Canada on humanitarian and compassionate grounds on several
factors. These included her establishment and family ties in Canada, and the
hardship that she claimed that she would face in Jamaica both from her former
domestic partner and because she is an HIV+ woman.
[2]
Ms. Mings-Edwards’
application was rejected by a PRRA Officer, who found that she had not
established that she would face unusual, undeserved or disproportionate
hardship if she were required to return to Jamaica
in order to apply for permanent residence.
[3]
I
am of the view that this
decision was unreasonable as the Officer failed to properly evaluate the
hardship that Ms. Mings-Edwards would face in Jamaica as an HIV+ woman.
Consequently, the application for judicial review will be granted.
Analysis
[4]
Although
Ms. Mings-Edwards’s H&C
submissions were relatively brief, she clearly identified the stigma and
discrimination that she would face in Jamaica as a result of her HIV+ status as a
hardship factor. She also stated that she would have no employment prospects or
family support in Jamaica.
[5]
Ms.
Mings-Edwards provided the
Officer with a substantial amount of country condition information that
addressed the treatment of HIV+ individuals in Jamaica.
Amongst other things, this evidence indicated that individuals living with
HIV/AIDS in Jamaica face significant social stigma and
discrimination, and that there are no laws in place to protect HIV+ individuals
from discrimination. Amnesty International describes this as a “pressing unmet
obligation”.
[6]
The
documentary evidence also
demonstrated that HIV+ individuals in Jamaica are often ostracized by their families.
They may lose their homes and their jobs, and can be treated like “a throwaway
person”.
[7]
Because
AIDS is frequently dismissed
as a disease of gay men and prostitutes, women infected with HIV are
particularly stigmatized in Jamaican society, as they are regarded either as
promiscuous or as sex trade workers. This can expose them to violence, and can
also negatively affect their ability to access health care and other services.
[8]
The
Officer recognized that no
laws protected those infected with HIV from discrimination, and that human
rights NGOs reported severe stigma and discrimination against HIV+
individuals. The Officer nevertheless went on to find that state protection,
while not perfect, existed in Jamaica, and that it would not be a hardship for
Ms. Mings-Edwards to access that protection, if required.
[9]
The
Officer also noted that Ms.
Mings-Edwards’s doctor had indicated that she led a healthy, active and
self-supporting life with medication and regular medical care, and that Ms.
Mings-Edwards had not shown that she would not be able to access appropriate
health care in Jamaica.
[10]
As
Ms. Mings-Edwards had been
educated and employed in Jamaica, the Officer was not persuaded that she
would have difficulties readjusting to Jamaican society and culture. The
Officer observed that Ms. Mings-Edwards had been self-supporting in the past,
and that she had a network of relatives in Jamaica,
including step-siblings, who could assist in her re-integration.
[11]
There
are a number of problems
with this conclusion.
[12]
While
Ms. Mings-Edwards may
previously have been able to support herself while living in Jamaica, she did so before she became HIV+. Ms.
Mings-Edwards may also have been able to lead a healthy, active and
self-supporting life, but she has done so in Canada, not in Jamaica, where employment discrimination against
those who are HIV+ is pervasive. Nowhere does the Officer consider the impact
that the change in her HIV status will have for Ms. Mings-Edwards’s ability to
support herself in Jamaica, or whether the difficulties that she
may encounter in this regard amount to an unusual, undeserved or
disproportionate hardship.
[13]
The
evidence before the Officer
also indicated that Ms. Mings-Edwards had no relationship with the step-siblings
in Jamaica who were supposed to assist in her
re-integration into Jamaican society. She had, moreover, been thrown out of an
aunt’s home (where she was staying during a visit to Jamaica) when her HIV status was discovered. Thus there was no basis
for the Officer’s finding that Ms. Mings-Edwards would have family support in Jamaica.
[14]
The
more fundamental problem
with the decision is that nowhere in the analysis does the Officer ever really
come to grips with, or evaluate the hardship that Ms. Mings-Edwards would face
in returning to a society where she would be exposed to pervasive
discrimination and societal stigma as a result of her status as an HIV+ woman.
[15]
A
review of the decision as a
whole reveals that the Officer approached the issue of Ms. Mings-Edwards’s
status as an HIV+ woman in Jamaica from two perspectives. The Officer
looked at whether Ms. Mings-Edwards would be able to access medical care in Jamaica, and whether adequate state protection would be available
to her, should she require it.
[16]
In
regard to this latter point,
the Officer committed the same error as was identified by the Federal Court of
Appeal in its recent decision in Hinzman v. Canada (Minister of Citizenship
and Immigration), 2010 FCA 177, [2010] F.C.J. No. 838 (QL). That is,
insofar as the risk component of the application was concerned, “the Officer’s
analysis is really nothing more than a risk assessment which stops short at the
availability of state protection …”: Hinzman at para. 27.
[17]
The
question for the Officer on
Ms. Mings-Edwards’ H&C application was not whether adequate state
protection would be available to her in Jamaica, but whether, having regard to all of
her individual personal circumstances, including her status as an HIV+ woman,
Ms. Mings-Edwards would face unusual, undeserved or disproportionate hardship
if returned home. The Officer’s failure to evaluate this hardship factor,
which was central to Ms. Mings-Edwards’ H&C application, renders the
decision unreasonable.
Conclusion
[18]
For
these reasons, the application
for judicial review is allowed.
Certification
[19]
Neither
party has suggested a
question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
This
application for judicial
review is allowed, and the matter is remitted to a different PRRA Officer for
re-determination; and
2.
No
serious question of general
importance is certified.
“Anne Mactavish”
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